Case No.: IT-95-10-A 5 July 2001

UNITEDNATIONS

Case No.: IT-95-10-A

Date: 5 July 2001

International Tribunal for theProsecution of PersonsResponsible for Serious Violations ofInternational Humanitarian LawCommitted in the Territory of theFormer Yugoslavia since 1991 Original: English

IN THE APPEALS CHAMBER

Before: Judge Mohamed Shahabuddeen, PresidingJudge Lal Chand VohrahJudge Rafael Nieto-NaviaJudge Patricia M. WaldJudge Fausto Pocar

Registrar:

Judgement of:

Mr. Hans Holthuis

5 July 2001

PROSECUTOR

v.

GORAN JELISI]

JUDGEMENT

Counsel for the prosecution:

Mr. Upawansa YapaMr. Geoffrey NiceMr. Morten BergsmoMr. Fabricio Guariglia

Counsel for the defence:

Mr. William CleggMr. Jovan Babi}

Case No.: IT-95-10-A 5 July 2001

CONTENTS

I. INTRODUCTION....................................................................................................................... 2

A. PROCEDURE BEFORE THE TRIAL CHAMBER ................................................................................ 2B. PROCEDURE BEFORE THE APPEALS CHAMBER............................................................................ 3

1. Appellate filings .................................................................................................................... 42. Grounds of appeal and relief requested ................................................................................. 5

a) The prosecutions appeal .................................................................................................... 5b) The cross-appellants appeal............................................................................................... 6

3. Additional evidence and other evidentiary matters............................................................... 8

II. PROSECUTIONS APPEAL................................................................................................... 10A. PROSECUTIONS FIRST GROUND OF APPEAL: DENIAL OF AN OPPORTUNITY TO BE HEARD.......... 10B. PROSECUTIONS SECOND GROUND OF APPEAL: STANDARD TO BE APPLIED PURSUANT TO RULE

98BIS(B) OF THE RULES............................................................................................................ 12C. PROSECUTIONS THIRD GROUND OF APPEAL: INTENT TO COMMIT GENOCIDE........................... 16

1. First part of third ground ..................................................................................................... 162. Second part of third ground................................................................................................. 19

III. CROSS-APPELLANTS APPEAL ......................................................................................... 27

A. CROSS-APPELLANTS FIRST GROUND OF APPEAL: CUMULATIVE CONVICTIONS ......................... 27B. CROSS-APPELLANTS SECOND GROUND OF APPEAL: THE TRIAL CHAMBER ERRED IN FACT

AND IN THE EXERCISE OF ITS DISCRETION WHEN IMPOSING SENTENCE...................................... 291. Admissibility of evidence at trial on count of genocide...................................................... 292. An unauthorised double conviction on counts 16-17 - killing of Huso and Smajil

Zahirovi} while the indictment alleged the killings in the alternative ................................ 303. The absence of a recognised tariff for sentencing ............................................................... 324. Insufficient account was given to the general practice of prison sentencing in the courts

of the former Yugoslavia..................................................................................................... 375. No credit was given to the accused for his guilty plea........................................................ 386. No credit was given for his cooperation with the prosecution ............................................ 397. Inadequate consideration of the youth of the cross-appellant............................................. 39

IV. DISPOSITION........................................................................................................................... 41

V. SEPARATE OPINION OF JUDGE NIETO-NAVIA ........................................................... 43

VI. PARTIAL DISSENTING OPINION OF JUDGE SHAHABUDDEEN............................... 49

VII. PARTIAL DISSENTING OPINION OF JUDGE WALD ................................................ 64

VIII. PARTIAL DISSENTING OPINION OF JUDGE POCAR .............................................. 70

IX. ANNEX A - GLOSSARY OF TERMS.................................................................................... 73

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The Appeals Chamber of the International Tribunal for the prosecution of persons responsible for

serious violations of international humanitarian law committed in the territory of the former

Yugoslavia since 1991 (the International Tribunal or the Tribunal) is seized of two appeals

against the judgement rendered by Trial Chamber I orally on 19 October 1999 and in writing on 14

December 1999 in the case of Prosecutor v. Goran Jelisi}.1

Having considered the written and oral submissions of the parties, the Appeals Chamber

HEREBY RENDERS ITS JUDGEMENT.

1 Prosecutor v. Goran Jelisi}, Case No.: IT-95-10-A.

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I. INTRODUCTION

A. Procedure before the Trial Chamber

1. The initial indictment against Goran Jelisi} alleged crimes of genocide, grave breaches of

the Geneva Conventions of 1949, violations of the laws or customs of war and crimes against

humanity committed in May 1992 in the municipality of Br~ko in the north-eastern part of Bosnia

and Herzegovina.2

2. Following discussions between the parties at the pre-trial stage, an agreement setting out the

factual basis was signed by the parties on 9 September 1998 (the agreed factual basis).3

Subsequently, on 20 October 1998, a second amended indictment was filed (the second amended

indictment).4 On 29 October 1998, Jelisic pleaded not guilty to the genocide count and guilty to

thirty-one counts comprising violations of the laws or customs of war and crimes against humanity.

Trial proceedings were, therefore, scheduled to deal with the count relating to genocide.

3. The trial commenced on 30 November 1998, but was suspended on 2 December 1998, due

to the illness of one of the Trial Judges. The Trial Chamber, accordingly, considered rendering its

decision and passing a sentence on the guilty pleas and postponing the genocide trial until a later

date. Discussions between the parties on this issue were held at a status conference on 18 March

1999.5 The prosecution agreed to the proposal.6 However, the defence objected to the suggestion

of separate sentencing procedures on the basis that, inter alia, during the forthcoming trial on

genocide the witnesses called by the prosecution might present evidence that could be used in

mitigation of sentence.7

4. The trial resumed on 30 August 1999 and the prosecution completed its presentation of

evidence on 22 September 1999. A status conference was held following the examination-in-chief

of the last prosecution witness and the matter adjourned to re-start with the defence case on 8

November 1999; the defence was also asked to confirm to the Senior Legal Officer whether it

intended to file a motion for judgement of acquittal pursuant to Rule 98bis of the Rules of

Procedure and Evidence of the International Tribunal (the Rules).8 It later replied in the negative

2 The initial indictment was confirmed on 21 July 1995. At the request of the prosecution, all the charges based onArticle 2 of the Statute, grave breaches of the Geneva Conventions of 1949, were withdrawn and an amendedindictment was filed on 13 May 1998.3 Agreed factual basis for guilty pleas to be entered by Goran Jelisi}, 9 September 1998.4 Second amended indictment against Goran Jelisi} and Ranko ^e{i}, 19 October 1998, paras 14-36.5 Provisional transcript of the trial proceedings in Prosecutor v. Goran Jelisi}, Case No.: IT-95-10-T (the trialtranscript), 18 March 1999, pp. 275-280.6 Ibid., p. 280.7 Ibid., p. 286.8 Ibid., 22 September 1999, p. 2311 (closed session).

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by way of fax dated 1 October 1999. However, prior to the commencement of the defence case, the

Trial Chamber informed the parties by way of notice from the Registry, on 12 October 1999, that it

would render a judgement pursuant to Rule 98bis(B) of the Rules. This Rule requires the Trial

Chamber to order the entry of judgement of acquittal [] if it finds that the evidence is

insufficient to sustain a conviction on that or those charges. On 15 October 1999, the prosecution

filed a motion to postpone the Trial Chambers decision until the prosecution had been given the

opportunity to present arguments (the motion to be heard).9

5. On 19 October 1999, the Trial Chamber pronounced its oral judgement (the oral

judgement) pursuant to Rule 98bis(B), stating that written reasons as well as sentencing would

follow.10 It decided that there was an indissociable link between the motion to be heard and the

judgement itself, and dismissed the motion to be heard.11 The Trial Chamber convicted Jelisi} of

the counts alleging violations of the laws or customs of war and crimes against humanity, to which

he had pleaded guilty, but acquitted him on the count of genocide pursuant to Rule 98bis(B) of the

Rules. A sentencing hearing was held on 25 November 1999. The written judgement of the Trial

Chamber was subsequently issued on 14 December 1999 (the Judgement) and a single sentence

of 40 years imprisonment was imposed.12

B. Procedure before the Appeals Chamber

6. Both parties have appealed. Following the Trial Chambers oral judgement, the prosecution

filed an appeal against the acquittal on the count of genocide.13 Jelisi} (the cross-appellant or the

respondent) also filed a notice of appeal against the oral judgement.14 Following the delivery of

the Judgement, the cross-appellant filed a second notice of appeal on 15 December 1999.15

7. The prosecution requested clarification of the right of the cross-appellant to file a notice of

cross-appeal as well as a notice of appeal to appeal against acquittal.16 The Appeals Chamber found

9 Prosecutors motion to be heard, 15 October 1999.10 Trial transcript, 19 October 1999, pp. 2321-2342.11 Ibid., pp. 2328-2330.12 Prosecutor v. Goran Jelisi}, Case No.: IT-95-10-T, Judgement, 14 December 1999 (English version filed 14 January2001), para. 139, p. 43.13 Prosecutions notice of appeal, 21 October 1999.14 Notice of cross-appeal, 26 October 1999.15 Notice of appeal, 15 December 1999.16 Prosecution motion for clarification of the right of the appellant Goran Jelisi} to file two notices of appeal and for ascheduling order in relation to the appeal, 20 December 2000. On 21 January 2000, the cross-appellant filed: Responseto prosecution motion filed 20th December 1999. On 28 January 2000, the prosecution filed Prosecution reply todefences Response to prosecution motion filed 20 th December 1999. The prosecution also requested that the AppealsChamber classify the time limits with regard to Rule 111 of the Rules. In its scheduling order of 14 January 2000, theAppeals Chamber ordered that the time limit for the filing of the briefs pursuant to Rule 111 should commence from 15December 1999, the day following the pronouncement of the written Judgement. On 7 March 2000, the Appeals

4Case No.: IT-95-10-A 5 July 2001

that the cross-appellant was barred from raising arguments regarding the acquittal on the count of

genocide in his appellants brief, since Article 25 of the Statute does not confer on an accused

person the right to appeal from an acquittal. However, the Chamber held that if the prosecution

sought to reverse the acquittal, then the cross-appellant in his brief in response would be permitted

to support his acquittal. 17

1. Appellate filings

8. The briefs relating to the prosecutions appeal against the Judgement were filed as follows.

On 14 July 2000, the prosecution filed its appeal brief (the prosecutions brief).18 On 14 August

2000, the respondent filed a response to the prosecutions brief (the response to prosecutions

brief)19 and on 29 August 2000, the prosecution filed its brief in reply (the prosecutions

reply).20

9. Following requests by the cross-appellant, the briefing schedule was extended on several

occasions.21 The submissions relating to the cross-appellants appeal were filed as follows. The

cross-appellant filed his brief on 7 August 2000 (the cross-appellants brief).22 On 6 September

2000, the prosecution filed its respondents brief (the prosecutions response).23 On 6 October

Chamber ordered that the briefs in relation to the cross-appellants appeal be filed by 15 May 2000. Followingsubsequent decisions this deadline was varied.17 Order, 21 March 2000.18 Prosecutors appeal brief (public redacted version), 14 July 2000. On the same date a confidential version was filed:Prosecutors appeal brief (confidential), as well as the book of authorities for the prosecutions appeal brief.19 Reply to prosecution appeal brief, 14 August 2000.20 Prosecutors brief in reply (public redacted version), 29 August 2000. On the same date a confidential version wasfiled: Prosecutors brief in reply (confidential).21 On 3 May 2000, the cross-appellant filed: Motion for extension of time, whereby he requested an extension of timefor filing the cross-appellants brief due to a delay in providing the cross-appellants counsel with a full set ofaudiotapes from the Trial Chamber proceedings in a language he could understand. On 11 May 2000, the AppealsChamber granted an extension of time until 10 July 2000. On 7 July 2000, the cross-appellant requested an extension oftime for the filing of his brief until 7 August 2000. On 17 July 2000, the Appeals Chamber issued: Order forprovisional extension of time, which provisionally extended the time for filing of the cross-appellants brief until 21July 2000, in order to enable the Appeals Chamber to deliberate on the 7 July motion. On 19 July 2000, in: Decisionon urgent motion requesting extension of time, the 7 July motion was granted, as the recently appointed legal assistantneeded more time to identify passages of the trial proceedings to be annexed to the appellants brief. The filing timewas extended to 7 August 2000. On 11 September 2000, the cross-appellant requested an extension of time for thefiling of the response to the prosecutions brief. On 15 September 2000, in: Decision on motion requesting extensionof time, the Appeals Chamber found that, by themselves, the grounds raised by the cross-appellant did not justify anextension of time. However, with regard to the special circumstances of the case, it found that it was appropriate toallow further time to enable counsel to explain the case to the cross-appellant. Hence, the time limit was extended to 6October 2000.22 Appellants brief on appeal against sentence (confidential), 7 August 2000. A public redacted version was filed on 2March 2001, upon the request of the Appeals Chamber in an order dated 30 January 2001, which was reiterated duringthe hearing on appeal, appeal transcript, 23 February 2001, p. 246.23 Respondents brief of the prosecution (confidential), 6 September 2000. On 15 February 2001, a public redactedversion was filed.

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2000, the cross-appellant submitted a reply to the prosecutions response (the cross-appellants

reply).24

10. On 16 February 2001, the cross-appellant, now represented by new counsel,25 filed a

document which identified the grounds being advanced by the cross-appellant in his appeal and

clarified his position with regard to the prosecutions appeal (the skeleton argument).26 Oral

argument was heard on 22 and 23 February 2001, during which the cross-appellant requested and

obtained leave to add a further ground of appeal and confirmed that certain issues advanced in the

cross-appellants brief would not be pursued.27

2. Grounds of appeal and relief requested

a) The prosecutions appeal

11. The prosecution has advanced the following three grounds of appeal against the

Judgement.28

1) The Trial Chamber made an error of law under Article 25 of the Statute by not giving

the Prosecution an opportunity to be heard on a proprio motu decision of the Trial

Chamber under Rule 98bis (the prosecutions first ground of appeal).29

2) The Trial Chamber erred in law by adopting the standard of guilt beyond a reasonable

doubt for the purposes of a Rule 98bis determination of the sufficiency of the evidence

to sustain a conviction (the prosecutions second ground of appeal).30

3) The Trial Chamber erred in law to the extent it is proposing that the definition of the

requisite mental state for genocide in Article 4 of the Statute include the dolus specialis

standard, and not the broader notion of general intent; the Trial Chamber erred in law

and fact when it decided in paragraphs 88-98 of the Judgement that the evidence did not

establish beyond all reasonable doubt that there existed a plan to destroy the Muslim

group in Br~ko or elsewhere within which the murders committed by Goran Jelisi}

would allegedly fit; and the Trial Chamber erred in law and fact when it decided in

paragraphs 99-108 that the acts of Goran Jelisi} were not the physical expression of an

24 Appellants reply to prosecutors respondents brief (confidential), 6 October 2000. A public redacted version wasfiled on 2 March 2001.25 Decision by the Registrar, 5 February 2001.26 Appellants skeleton submissions, 16 February 2001.27 Appeal transcript, 22 February 2001, p. 37 and 23 February 2001, pp. 198-199.28 The prosecutions grounds of appeal were set out in the prosecutions brief and prosecutions reply, as well as duringthe hearing on appeal.29 Prosecutions brief, para. 2.1, p. 9.

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affirmed resolve to destroy in whole or in part a group as such, but rather, were arbitrary

acts of killing resulting from a disturbed personality (the prosecutions third ground of

appeal).31

12. The prosecution submits that the appropriate remedy is to remit the matter to a differently

constituted Trial Chamber for a new trial.32 It further submits that there is an interrelationship

between the prosecutions first two grounds of appeal and the third ground such that, if the Appeals

Chamber decides to remit the case to a newly constituted Trial Chamber, the Appeals Chamber

should provide guidance by ruling on the legal issue of the necessary intent for genocide.

However, the Appeals Chamber need not address the factual errors as alleged as this would be

determined by the newly constituted Trial Chamber.33

b) The cross-appellants appeal

13. The cross-appellant states that he does not seek a retrial, he has been acquitted of all the

offences he contested. He seeks only to appeal against his sentence.34

14. In support of his appeal against sentence, the cross-appellant in his brief presented

arguments under two heads, challenging on several grounds, first, the fairness of the proceedings

and, second, the correctness of the judgement.

15. The cross-appellants first head of argument included allegations challenging the manner in

which the presiding Judge conducted the hearing at trial on the count of genocide. However, it is

not necessary to consider these arguments. At the hearing on appeal before the Appeals Chamber

and as mentioned above, newly retained counsel for the cross-appellant submitted a skeleton

argument, stating that the grounds advanced are those identified in the skeleton.35 The grounds

presented in the skeleton argument did not repeat all the grounds which had been presented in the

cross-appellants brief. In opening the cross-appellants case, counsel said: The Court will have

observed that the appellants brief concentrated on the conduct of the Trial Judge both during the

course of the trial on genocide, where verdicts were returned in favour of the accused, and also

during the protracted sentencing hearings; but, he added: I do not press today the criticism of the

30 Prosecutions brief, para. 3.5, p. 27.31 Ibid., para. 4.6, p. 53.32 Ibid., para. 5.7, p. 86.33 Ibid., para. 5.6(a), p. 85. Appeal transcript, 22 February 2001, p. 9.34 Skeleton argument, para. 6.1, p. 6.35 Appeal transcript, 23 February 2001, p. 198.

7Case No.: IT-95-10-A 5 July 2001

trial Judge during the hearing on the genocide because, of course, that was a trial in which none of

the offences for which he was being sentenced were being examined by the Trial Chamber.36

16. In the circumstances, the Appeals Chamber will not pass on the complaints originally made,

treating them as having been abandoned. It will only observe that, in long and complicated cases,

such as most of those which come to the Tribunal, it is necessary for the Trial Chamber to exercise

control over the proceedings. That control may well need to be vigorous, provided of course that it

does not encroach on the right of a party to a fair hearing. In this case, because of the abandonment

of this ground of appeal, it is not necessary to consider whether reasonable limits were exceeded.

17. The second head of argument in the cross-appellants brief related to matters arising from

the Judgement itself.37 These were refined during the hearing on appeal, where the cross-appellant

stated that he did not pursue certain of the sub-grounds previously advanced,38 and in the skeleton

argument. In particular, in the latter, the cross-appellant stated that his appeal would focus on the

following seven factors, to be elaborated in oral argument:

(i) His plea of guilty.(ii) His co-operation with the prosecution.(iii) The necessity for the I.C.T.Y. to establish a recognised tariff for sentencing.(iv) His youth, maturity, the impact of propaganda on him and mental state.(v) The agreed factual basis of his plea.(vi) Comparison with other sentences passed in the I.C.T.Y and the International Criminal

Tribunal for Ruanda [sic].(vii) Insufficient account was given of the general practice regarding prison sentences in the

courts of the Former Yugoslavia as required by Article 24 of the Statute of the InternationalTribunal.39

18. During the hearing on appeal the cross-appellant requested leave to amend his notice of

appeal, in light of the recent Delali} appeal judgement,40 to argue that the Trial Chamber erred by

36 Ibid., pp. 164-165.37 These were as follows: a) the factual basis for the Trial Chambers conclusion with regard to the nature andseriousness of the offences was based upon a document which the Trial Chamber erroneously concluded had beenagreed to between the parties; b) the Trial Chambers Judgement included an unauthorised double conviction on counts16-17 - killing of Huso and Smajil Zahirovi} - while the indictment alleged that he shot and killed one of them; c) theTrial Chamber reversed the burden of proof; d) the cross-appellant was given no credit for his guilty plea, for havingmade early admissions to the offences charged and for his co-operation with the prosecution; e) the Trial Chamberfailed properly to consider the defence case on sentence; f) the Trial Chamber failed properly to consider the sentencingpractice in the former Yugoslavia; g) the Trial Chamber made inappropriate use of medical evidence; h) the 40 yearssentence reflects a disparity between this case and other cases before the Tribunals; and i) the Trial Chamberinappropriately passed a single sentence, cross-appellants brief, pp. 114-145.38 Appeal transcript, 22 February 2001, p. 37, and 23 February 2001, pp. 198-199.39 Skeleton argument, para. 6.2, p. 6.40 Prosecutor v. Zejnil Delali} et al, Case No.: IT-96-21-A, Judgement, 20 February 2001 (the Delali} appealjudgement).

8Case No.: IT-95-10-A 5 July 2001

imposing cumulative convictions.41 Leave was granted orally by the Appeals Chamber, with time

limits fixed for the filing of further submissions by the parties in response and reply.42

19. Accordingly, the Appeals Chamber views the cross-appellant as raising the following

grounds of appeal:

1) The Trial Chamber erred by imposing cumulative convictions (the cross-appellants

first ground of appeal).

2) The Trial Chamber erred in fact and in the exercise of its discretion when imposing

sentence on the particular grounds mentioned in the skeleton argument, later set out in

part III of this judgement (the cross-appellants second ground of appeal).

3. Additional evidence and other evidentiary matters

20. On 8 September 2000, the cross-appellant filed an application for the presentation of

additional evidence.43 In this application, he requested the admission into evidence of reports by an

expert witness, Mrs. Ljiljana Mijovic, and the Commanding Officer of the United Nations

Detention Unit in the Hague, Mr. Timothy McFadden, concerning respectively the rank of the

accused as a member of the reserve police and the overall behaviour of the accused whilst in

custody before and after the Judgement. The prosecution submitted that the application should be

denied44 and it was rejected by the Appeals Chamber in its decision dated 15 November 2000.45

21. On 7 March 2001, after the close of oral arguments, the cross-appellant filed a report by Dr.

Tomi} on the general practice of courts in the former Yugoslavia.46 The prosecution objected to the

filing.47 Generally speaking, for additional evidence to be admitted at the appeal stage, a motion

pursuant to Rule 115 of the Rules must be presented at least fifteen days prior to the hearing of the

appeal.48 Such application can, in exceptional circumstances, be filed later, but should be supported

41 Appeal transcript, 22 February 2001, pp. 32-35 and 245-246, referring to the Delali} appeal judgement.42 Ibid., pp. 33-35. The Appeals Chamber decided the prosecution would have 10 days to respond and the cross-appellant would have 10 days from the filing of the response to file his reply, appeal transcript, 22 February 2001, p. 35and 23 February 2001, pp. 245-246. Subsequently, on 6 March 2001, the Prosecution response to the oral motion andthe additional ground of appeal of Goran Jelisi} regarding cumulative convictions and the Appellants writtensubmission in support of the oral motion to quash cumulative convictions were filed.43 The defences brief for the presentation of the additional evidence, 8 September 2000.44 Prosecution response to the defences brief for the presentation of the additional evidence, 18 September 2000.45 Decision on request to admit additional evidence, 15 November 2000.46 General practice of courts in the former Yugoslavia and the newly emerged states on the territory of the formerYugoslavia in determining prison sentences, 7 March 2001.47 Prosecution objection to the admission of document filed on 7 March 2001 on behalf of Goran Jelesi} [sic], 9 March2001.48 Evidence may also be admitted in certain circumstances under Rule 89 of the Rules, see for example Prosecutor v.Zejnil Delali} et al, Case No.: IT-96-21-A, Order on motion for the extension of the time-limit and admission ofadditional evidence, 31 May 2000, and Order on motion of Esad Land`o to admit as additional evidence the opinion of

9Case No.: IT-95-10-A 5 July 2001

by both a request for an extension of time and a showing of good cause, pursuant to Rule 127 of the

Rules. Neither requirement has been met in the circumstances of this case. During the hearing on

appeal counsel for the cross-appellant stated that he would be willing to forward the report to the

Appeals Chamber.49 The Appeals Chamber did not accept this offer. No attempt has been made to

satisfy the Appeals Chamber that the requirements of Rule 115 have been met or that there is

justification for extending the requisite time-limits. The report is therefore not admitted into

evidence.

Francisco Villalobos Brenes, 14 February 2000, Prosecutor v. Zoran Kupre{ki} et al, Case No.: IT-95-16-A, RedactedDecisions of the Appeals Chamber of 26 February 2001 and 11 April 2001, 30 May 2001. See equivalent, Jean-PaulAkayesu v. The Prosecutor, Case No.: ICTR-96-4-A, Decision (on the consolidation or summarization of motions notyet disposed of), 22 August 2000, applying Rule 89 of the ICTR Rules.49 Appeal transcript, 23 February 2001, pp. 190-191.

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II. PROSECUTIONS APPEAL

A. Prosecutions first ground of appeal: denial of an opportunity to be heard

22. The prosecutions first ground of appeal is that the Trial Chamber made an error of law

under Article 25 of the Statute by not giving the Prosecution an opportunity to be heard on a

proprio motu decision of the Trial Chamber under Rule 98bis.50

23. This ground refers to the fact that, at the end of the case for the prosecution, the Trial

Chamber, acting proprio motu, acquitted the respondent on count 1, genocide, without first hearing

from the prosecution. The submission is that the Trial Chamber made its decision not only without

hearing from the prosecution on the question of substance as to whether the evidence was

insufficient to sustain a conviction, but also without granting it an oral hearing on its written

procedural motion, the motion to be heard, which requested a hearing on the substantive motion.

The Trial Chamber said that it was acting under Rule 98bis(B). This provision reads:

The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused orproprio motu if it finds that the evidence is insufficient to sustain a conviction on that or thosecharges.

24. On 19 October 1999, the Trial Chamber joined the decision on the written motion to be

heard to the decision on the merits of acquittal (the Judgement) adjudging that an indissociable

link existed between the Motion submitted by the Prosecution and the Decision on the merits.51

25. The Appeals Chamber begins with the proposition that a party always has a right to be heard

on its motion. But the hearing need not always be oral. In this regard, there is no provision in the

Rules which provides for a right of a party to make oral submissions in connection with a written

motion. Similarly, the practice of the Tribunal allows for a decision on a written motion without

any supplementary oral arguments, the motion itself being regarded as affording to the moving

party a sufficient right to be heard. In these circumstances, the Appeals Chamber can find no error

in the fact that the Trial Chamber decided against the claim that the prosecution had a right to be

heard orally on whether it had a right to be heard on the substantive merits of acquittal under Rule

98bis, since all the basic arguments in support of a right to be heard before a substantive decision on

acquittal was made were in fact set out in the written motion to be heard and needed no oral

supplement. On this point, the impugned decision was therefore right.

50 Prosecutions brief, para. 2.1, p. 9.51 Judgement, para. 16, p. 4.

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26. However, as indicated above, the Trial Chamber also decided against the right of the

prosecution to be heard on the substantive question of whether its evidence was insufficient to

sustain a conviction. The Trial Chambers decision was rendered orally on 19 October 1999, and

then put in writing on 14 December 1999. Taking the two together, it is clear that the Trial

Chamber considered that, where it was acting proprio motu, the prosecution had no right to be

heard at all; such a right was not accorded by the Rules and could not be based upon the principle

audi alteram partem.52 Was this decision correct?

27. In the view of the Appeals Chamber, the fact that a Trial Chamber has a right to decide

proprio motu entitles it to make a decision whether or not invited to do so by a party; but the fact

that it can do so does not relieve it of the normal duty of a judicial body first to hear a party whose

rights can be affected by the decision to be made.53 Failure to hear a party against whom the Trial

Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial.54 The

Rules must be read on this basis, that is to say, that they include a right of the parties to be heard in

accordance with the judicial character of the Trial Chamber. The availability of this right to the

prosecution and its exercise of the right can be of importance to the making of a correct decision by

the Trial Chamber: the latter could benefit in substantial ways from the analysis of the evidence

made by the prosecution and from its argument on the applicable law.55

28. The prosecution therefore had a right to be heard on the question of whether the evidence

was sufficient to sustain a conviction;56 it was denied that right. Counsel for the respondent rightly

concedes this.57

29. The prosecutions first ground of appeal succeeds. The question of remedy is discussed

under the prosecutions third ground of appeal.

52 Trial transcript, 19 October 1999, p. 2330. (Audi alteram partem means to hear the other side.)53 See generally R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions [1995] Crim LR 953(Barking case), and Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000 (Cosier case).54 See Cosier case, supra .55 See Cosier case, supra . For a more general observation on the importance of not deciding without first hearingcounsels arguments, see Judge ad hoc Barwicks dissenting opinion in Nuclear Tests (Australia v. France), I.C.J.Reports 1974, p. 442.56 See Barking and Cosier cases, supra.57 Skeleton argument, paras 2.1-2.4, pp. 2-3.

12Case No.: IT-95-10-A 5 July 2001

B. Prosecutions second ground of appeal: standard to be applied pursuant to Rule

98bis(B) of the Rules.

30. In the prosecutions second ground of appeal, it submits that the Trial Chamber erred in

law by adopting the standard of guilt beyond a reasonable doubt for the purposes of a Rule 98bis

determination of the sufficiency of the evidence to sustain a conviction.58

31. This ground relies on the fact that, in entering a judgement of acquittal proprio motu, the

Trial Chamber stated inter alia:

All things considered, the Prosecutor has not established beyond all reasonable doubt thatgenocide was committed in Brcko during the period covered by the indictment. Furthermore, thebehaviour of the accused appears to indicate that, although he obviously singled out Muslims, hekilled arbitrarily rather than with the clear intention to destroy a group. The Trial Chambertherefore concludes that it has not been proved beyond all reasonable doubt that the accused wasmotivated by the dolus specialis of the crime of genocide. The benefit of the doubt must alwaysgo to the accused and, consequently, Goran Jelisic must be found not guilty on this count.59

32. On appeal, the prosecution submits that the Trial Chamber, in requiring that the prosecution

evidence prove guilt beyond reasonable doubt at the end of the casein-chief, was applying a

different and more exacting test than that required by law. In its view, the correct test, at that stage,

was whether, on the evidence (if accepted), a reasonable tribunal of fact could (not should) make a

finding of guilt. It notes that the respondent did not make a no case motion, although it was asked

by the Trial Chamber whether it proposed to do so. In reply, the respondent contends that the

standard under Rule 98bis(B) necessarily involves a determination whether the evidence was

sufficient to prove guilt beyond reasonable doubt.60

33. The Appeals Chamber will first consider whether the references by the Trial Chamber to a

test of proof of guilt beyond reasonable doubt were correct. In the view of the Appeals Chamber,

the matter turns on an interpretation of Rule 98bis(B). The situation was put very well in Kordic, in

which Trial Chamber III stated:

Although the Prosecution has referred to the proceedings under this Rule as no case to answer,using the description to be found in many common law jurisdictions, the Chamber considers thatthe better approach is not to characterise Rule 98bis proceedings in that way, lest it be thought thatthe Rule must necessarily be applied in the same way as proceedings for no case to answer inthose jurisdictions. It is true that Rule 98bis proceedings, coming as they do at the end of theProsecutions case, bear a close resemblance to applications for no case to answer in common lawjurisdictions. However, that does not necessarily mean that the regime to be applied for Rule98bis proceedings is the same as that which is applicable in the domestic jurisdictions of thosecountries. Ultimately, the regime to be applied for Rule 98bis proceedings is to be determined onthe basis of the Statute and the Rules, having in mind, in particular, its construction in the light ofthe context in which the Statute operates and the purpose it is intended to serve. That

58 Prosecutions brief, para. 3.5, p. 27.59 Judgement, para. 108, pp. 33-34.60 Response to prosecutions brief, pp. A-1135-1136 as given by the Registry.

13Case No.: IT-95-10-A 5 July 2001

determination may be influenced by features of the regime in domestic jurisdictions with similarproceedings, but will not be controlled by it; and therefore a proper construction of the Rule mayshow a modification of some of those features in the transition from its domestic berth. 61

34. In reading and interpreting the text of Rule 98bis(B), it has to be borne in mind that the

adversarial aspect of the Tribunals procedure is an important one but not exclusive of other

influences. The Tribunal is an international judicial body. Accused persons come from primarily

civil law jurisdictions. Judges of the Tribunal come from different legal cultures, as do counsel

appearing before it. The Trial Chamber in this case consisted wholly of non-common law judges;

account must be taken of that fact in interpreting the language in which their judgement was cast.

To require strict conformity with a common law verbal formula would not be appropriate; it is the

substance which is important.

35. In the end, the matter depends on an interpretation of the text of Rule 98bis(B), an

interpretation aided by reference to particular municipal concepts but not controlled by them. When

the Rule is so read, the question becomes: what does its reference to a test of whether the evidence

is insufficient to sustain a conviction mean? Following the settled jurisprudence of the Tribunal,

those words are to be interpreted in good faith in accordance with the ordinary meaning to be

given to [them] in their context and in the light of [their] object and purpose, within the meaning of

Article 31(1) of the Vienna Convention on the Law of Treaties 1969. So interpreted, it appears to

the Appeals Chamber that those words must of necessity import the concept of guilt beyond

reasonable doubt, for it is only if the evidence is not capable of satisfying the reasonable doubt test

that it can be described as insufficient to sustain a conviction within the meaning of Rule

98bis(B). Rule 87(A), confirms this interpretation by providing that a finding of guilt may be

reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond

reasonable doubt.

36. Consequently, the notion of proof of guilt beyond reasonable doubt must be retained in the

operation of Rule 98bis(B). This was recognised by Trial Chamber IIs decision in Kunarac. The

test applied in that case was correctly stated to be whether there is evidence (if accepted) upon

which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which

a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused

on the particular charge in question. If the evidence does not reach that standard, then the evidence

is, to use the words of Rule 98bis(B), insufficient to sustain a conviction.62 Kunaracs reference

to the necessity of a reasonable tribunal being satisfied beyond reasonable doubt should be

61 Prosecutor v. Dario Kordi} and Mario ^erkez, Case No.:IT-95-14/2-T, Decision on defence motions for judgementof acquittal, 6 April 2000, para. 9, p. 5.

14Case No.: IT-95-10-A 5 July 2001

especially noted. So too in Kvocka, the Trial Chamber, in applying the same Rule, adopted the

standard that no reasonable chamber could find guilt beyond a reasonable doubt on the basis of the

Prosecutions case-in-chief.63 This interpretation appears in other formulations of the test for mid-

trial acquittal to the effect that the prosecution evidence, taken at its highest, is such that a jury

properly directed could not properly convict on it.64 A jury will not be properly directed if it is

not told, verbatim or to the effect, that it cannot convict unless it is satisfied beyond reasonable

doubt that the guilt of the accused has been proved by the evidence. Consequently, the reasonable

doubt standard is adopted in the tests used in common law systems in the determination of a no case

submission.

37. The next question is how should the test of guilt beyond reasonable doubt be applied in this

situation. The Appeals Chamber considers that the reference in Rule 98bis to a situation in which

the evidence is insufficient to sustain a conviction means a case in which, in the opinion of the

Trial Chamber, the prosecution evidence, if believed,65 is insufficient for any reasonable trier of fact

to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber

follows its recent holding in the Delalic appeal judgement, where it said: [t]he test applied is

whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied

beyond reasonable doubt of the guilt of the accused on the particular charge in question.66 The

capacity67 of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt

by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact

arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but

whether it could. At the close of the case for the prosecution, the Chamber may find that the

prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if

no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own

view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.

62 Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T, IT-23-1-T, Decision on motion for acquittal, 3 July2000 (the Kunarac decision), para. 3, p. 3 (emphasis in original). And see, ibid., paras 7 - 8, pp. 4-5.63 Prosecutor v. Miroslav Kvocka et al, Case No.: IT-98-30/1-T, Decision on defence motions for acquittal, 15December 2000, (the Kvo~ka decision) para. 12.64 R. v. Galbraith, 73 Cr. App. R. 124, at p. 127, C.A., per Lord Lane, C.J.65 As to the permissibility of drawing inferences at the close of the case for the prosecution, see Monteleone v. TheQueen [1987] 2 S.C.R. 154, in which McIntyre J., for the court, said: It is not for the trial judge to draw inferences offact from the evidence before him. And see the reference to inferences in Her Majesty v. Al Megrahi and Another,infra. Cf. Kvocka decision, para. 12, p. 5, in which the Trial Chamber said: The Chamber prefers an objective standard,under which it is entitled at this stage to apply any reasonable inferences and presumption or legal theories whenreviewing the Prosecution evidence. The issue thus posed is not passed upon here.66Delali} appeal judgement, para. 434, p. 148 (emphasis in original). Or, as it was correctly put by Trial Chamber II inthe Kunarac decision, para. 10, p. 6, the prosecution needs only to show that there is evidence upon which areasonable tribunal of fact could convict, not that the Trial Chamber itself should convict (emphasis in original).

15Case No.: IT-95-10-A 5 July 2001

38. There are indeed elements in the impugned decision that indicate an interpretation that the

Trial Chamber itself recognised that its task was not to make a final finding of guilt; but

unfortunately these indications are overborne by other passages which seem to point strongly in the

opposite direction, i.e., that what the Trial Chamber was in fact doing was making its own decision

as to whether the evidence warranted a finding of reasonable doubt as to the accuseds guilt.

For example, the Trial Chamber found that:

in this case, the Prosecutor has not provided sufficient evidence allowing it to be establishedbeyond all reasonable doubt that there existed a plan to destroy the Muslim group in Br~ko orelsewhere within which the murders committed by the accused would allegedly fit.68

It also stated:

[T]he behaviour of the accused appears to indicate that, although he obviously singled outMuslims, he killed arbitrarily rather than with the clear intention to destroy a group. The TrialChamber therefore concludes that it has not been proved beyond all reasonable doubt that theaccused was motivated by the dolus specialis of the crime of genocide. The benefit of the doubtmust always go to the accused and, consequently, Goran Jelisi} must be found not guilty on thiscount.69

Counsel for the respondent concedes that the Trial Chamber did apply the incorrect standard of

proof to the stage at which the trial had reached.70 However, he adds:

This complaint although well founded is one of form rather than substance. Had the TrialChamber indicated at the close of the case for the prosecution that on the basis of the evidencethen before them they could not see how they could be satisfied beyond a reasonable doubt that thecase had been proved no complaint would be made.71

39. The Appeals Chamber does not agree. As will be seen in the following section, it is the

opinion of the Appeals Chamber that the Trial Chambers application of an erroneous standard in

making its determination under Rule 98bis led it to incorrectly assess evidence.

40. The prosecutions second ground of appeal succeeds. The question of remedy is discussed

under the prosecutions third ground of appeal.

67 According to MacKinnon A.C.J.O. in R. v. Syms (1979) 47 C.C.C. (2d) 114 at 117, a trial judge should withdraw acase from the jury only where the evidence was so slight or tenuous that it would be incapable of supporting a verdictof guilty.68 Judgement, para. 98, p. 31.69 Ibid., para. 108, pp. 33-34.70 Skeleton argument, para. 3.1, p. 3.71 Ibid., para. 3.2, p. 3.

16Case No.: IT-95-10-A 5 July 2001

C. Prosecutions third ground of appeal: intent to commit genocide

41. The prosecutions third ground of appeal has two parts. The Appeals Chamber will deal

with each part separately.

1. First part of third ground

42. In the first part, the prosecution submits that the Trial Chamber erred in law to the extent

that it defined the requisite mental state for genocide as limited to the dolus specialis standard.72

In effect, the prosecution submits that the Trial Chamber erred in law by limiting its application of

Article 4 of the Statute, which defines the required mens rea for genocide as destroying, in whole or

in part, a national, ethnical, racial or religious group, to only cases that meet a civil law dolus

specialis standard. It submits that [i]t cannot be assumed that the concept of dolus specialis has a

fixed meaning even within the diverse groups of civil law systems.73 In referring to dolus

specialis, the prosecution argues that the Trial Chamber attributed to it a definition as to the degree

or quality of intent that exists in certain civil law jurisdictions.74 It submits that that definition

could be that the accused consciously desired the destruction, in whole or in part, of the group, as

such.75 The Appeals Chamber understands the prosecution submission to be that an accused has the

required mens rea for genocide if: i) he consciously desired the committed acts to result in the

destruction, in whole or in part, of the group, as such; or ii) he knew that his acts were destroying,

in whole or in part, the group, as such;76 or iii) he, acting as an aider or abettor, commits acts

knowing that there is an ongoing genocide which his acts form part of, and that the likely

consequence of his conduct would be to destroy, in whole or in part, the group as such.77

43. The respondent disagrees with the prosecution. He submits that the Trial Chamber only

once used the phrase dolus specialis in its Judgement and that, contrary to the prosecutions

position, it was intended as an alternative expression for specific intent, that is the intent to

destroy, in whole or in part, a national, ethnical, racial or religious group, as such and did not refer

to the degree of the requisite intent as alleged by the prosecution.78 Accordingly, the respondent

72 Prosecutions brief, para. 5.5, p. 85.73 Ibid., para. 4.22, p. 59.74 Ibid., states [i]n German law, for example, the term Absicht is used to capture what is often being referred to asdolus specialis in literature, whilst Norwegian law uses the term hensikt.75 Ibid., para. 4.21, p. 58.76 This proposition does not contain any element of probability. It refers to knowledge of the actual destruction, inwhole or in part. Appeal transcript, 22 February 2001, pp. 68-69.77 Prosecutions brief, para. 4.9, p. 54. The specification that category iii) only relates to conduct as an aider or abettorwas made during oral argument, see appeal transcript, 22 February 2001, pp. 69 and 77.78 Cross-appellants reply, pp. 1135-1134. The Appeals Chamber notes that the respondent during oral argumentaddressed this issue more generally and did not elaborate on the degree of intent required. Appeal transcript, 22February 2001, pp. 119-130.

17Case No.: IT-95-10-A 5 July 2001

considers that the Trial Chamber has properly identified the intent required for the crime of

genocide.

44. Before discussing the Trial Chambers interpretation of the term dolus specialis, the Appeals

Chamber considers it necessary to clarify the requisite mens rea under Article 4 of the Statute,

which provides:

1. The International Tribunal shall have the power to prosecute persons committing genocide asdefined in paragraph 2 of this article or of committing any of the other acts enumerated inparagraph 3 of this article.

2. Genocide means any of the following acts committed with intent to destroy, in whole or in part,a national, ethnical, racial or religious group, as such:

(a) killing members of the group;(b) causing serious bodily or mental harm to members of the group;(c) deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part;(d) imposing measures intended to prevent births within the group;(e) forcibly transferring children of the group to another group.

3. The following acts shall be punishable:(a) genocide;(b) conspiracy to commit genocide;(c) direct and public incitement to commit genocide;(d) attempt to commit genocide;(e) complicity in genocide.

45. Article 4, paragraphs (2) and (3) of the Statute largely reflect Articles II and III of the

Convention on the Prevention and Punishment of the Crime of Genocide.79 As has been seen,

Article 4(2) of the Statute defines genocide to mean any of certain acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The Statute

itself defines the intent required: the intent to accomplish certain specified types of destruction.

This intent has been referred to as, for example, special intent, specific intent, dolus specialis,

particular intent and genocidal intent. 80 The Appeals Chamber will use the term specific intent to

describe the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as

such.81

79 United Nations Treaty Series, vol. 78, p. 277, General Assembly Resolution 260A (III).80 See for example: Prosecutor v. Alfred Musema, Case No.: ICTR-96-13-T, Judgement and sentence, 27 January 2000,paras 164-167, p. 56-58, which refer to specific intent and dolus specialis interchangeably; Prosecutor v. Jean-PaulAkayesu, Case No.: ICTR-96-4-T, 2 September 1998, Judgement, para. 498, which refers to genocidal intent. TheInternational Law Commission refers to specific intent (A/51/10), p. 87.81 The Appeals Chamber does not attribute to this term any meaning it might carry in a national jurisdiction.

18Case No.: IT-95-10-A 5 July 2001

46. The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in

Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical,

racial or religious group, as such.82

47. As to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred

from a number of facts and circumstances, such as the general context, the perpetration of other

culpable acts systematically directed against the same group, the scale of atrocities committed, the

systematic targeting of victims on account of their membership of a particular group, or the

repetition of destructive and discriminatory acts.

48. The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal

ingredient of the crime. However, in the context of proving specific intent, the existence of a plan

or policy may become an important factor in most cases. The evidence may be consistent with the

existence of a plan or policy, or may even show such existence, and the existence of a plan or policy

may facilitate proof of the crime.83

49. The Appeals Chamber further recalls the necessity to distinguish specific intent from

motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to

obtain personal economic benefits, or political advantage or some form of power. The existence of

a personal motive does not preclude the perpetrator from also having the specific intent to commit

genocide. In the Tadi} appeal judgement the Appeals Chamber stressed the irrelevance and

inscrutability of motives in criminal law.84

50. The prosecution submits that the Trial Chamber erred in confining the mental state for

genocide to include only dolus specialis and not the broader notion of general intent which has

been set out above.85 In this regard, the Trial Chamber held:

All things considered, the Prosecutor has not established beyond reasonable doubt that genocidewas committed in Br~ko during the period covered by the indictment. Furthermore, the behaviourof the accused appears to indicate that, although he obviously singled out Muslims, he killedarbitrarily rather than with the clear intention to destroy a group. The Trial Chamber thereforeconcludes that it has not been proved beyond all reasonable doubt that the accused was motivatedby the dolus specialis of the crime of genocide. The benefit of the doubt must always go to theaccused and, consequently, Goran Jelisi} must be found not guilty on this count.86

82 The Appeals Chamber notes it is speaking here solely in the context of the commission of genocide within themeaning of Article 4 of the Statute.83 This was also held in the oral decision by the Appeals Chamber for the ICTR in Obed Ruzindana and ClmentKayishema v. Prosecutor, Case No.: ICTR-95-1-A, 1 June 2001.84 Prosecutor v. Du{ko Tadi}, Case No.: IT-95-1-A, Judgement, 15 July 1999 (the Tadi} appeal judgement), para.269, p. 120.85 Prosecution brief, paras 4.6 and 4.8, pp. 53-54.86 Judgement, para. 108, pp. 33-34.

19Case No.: IT-95-10-A 5 July 2001

51. The Appeals Chamber considers that a question of interpretation of the Trial Chambers

Judgement is involved. Read in context, the question with which the Judgement was concerned in

referring to dolus specialis was whether destruction of a group was intended. The Appeals

Chamber finds that the Trial Chamber only used the Latin phrase to express specific intent as

defined above.

52. Accordingly, the Appeals Chamber agrees with the respondent and holds that the

prosecutions challenge to the Trial Chambers finding on this issue is not well founded, being

based on a misunderstanding of the Judgement. This part of the prosecutions third ground of

appeal therefore fails.

2. Second part of third ground

53. It now remains to consider the second part of the prosecutions third ground of appeal.

Assuming the meaning of intent set out above, the prosecution contended that the Trial Chamber

was in error in holding that its evidence was insufficient to sustain a conviction for genocide. In

particular, it pointed to several items of evidence to which the Trial Chamber had not referred.87

54. Counsel for the respondent argues, by reference to the Tadic appeal judgement,88 that on the

same set of facts, two reasonable triers of fact could both reach equally reasonable but different

conclusions.89 He submits that the Trial Chamber was not required to refer to every piece of

evidence. Rather, it was entitled to select the evidence on which it would rely. In his contention,

the question was whether, on the evidence on which the Trial Chamber relied, a reasonable trier of

fact could have reached the conclusion reached by the Trial Chamber. He submits that the

prosecution had not shown that this was not possible.

55. In the view of the Appeals Chamber, the Tadic principle applies to the evaluation of facts,

and has no bearing on the principal question here, i.e., whether the Trial Chamber was entitled to

make its own evaluation of the relevant evidence. The Tadi} principle applies only where the

decision in question was one which the trier of fact was authorised to make; if, being authorised to

make the decision, he makes it on the basis of material on which a reasonable trier of fact could

have reached the same conclusion, his decision will not be overruled because another equally

reasonable trier of fact would, on the same material, have reached a different but equally reasonable

conclusion. The principle does not apply to issues of whether the Trial Chamber had the authority

to make that evaluation of the evidence in the first place. The Appeals Chamber considers that the

87 Appeal transcript, 22 February 2001, pp. 94-97.88 Tadi} appeal judgement, para. 64, pp. 27-28.89 Appeal transcript, 22 February 2001, p. 144.

20Case No.: IT-95-10-A 5 July 2001

Trial Chamber was required to assume that the prosecutions evidence was entitled to credence

unless incapable of belief. That is, it was required to take the evidence at its highest and could not

pick and choose among parts of that evidence.

56. The remaining issue is whether under the correct standard, that is, upon consideration of all

relevant evidence submitted by the prosecution in its case-in-chief, the Trial Chamber was entitled

to conclude that no reasonable trier of fact could find the evidence sufficient to sustain a conviction,

beyond reasonable doubt, for genocide.

57. Having reviewed the evidence in the appeal record, the Appeals Chamber cannot validate

the Trial Chambers conclusion that it was not sufficient to sustain a conviction. It is not necessary

in explaining reasons for this conclusion that the Appeals Chamber evaluates every item of

evidence in the record. Rather, the Appeals Chamber can first assess the Trial Chambers own

reasons for its conclusion that acquittal was required in light of the evidence on record which was

relevant to those reasons and, secondly, the Appeals Chamber can assess other evidence on the

record which was not specifically referred to by the Trial Chamber but to which it has been directed

in the course of the appeal.

58. The Trial Chamber found that there were two elements to be considered in the proof of

genocide. In paragraph 62 of the Judgement it stated:

Genocide is characterised by two legal ingredients according to the terms of Article 4 of theStatute:

- the material element of the offence, constituted by one or several acts enumerated in paragraph 2of Article 4;

- the mens rea of the offence, consisting of the special intent to destroy, in whole or in part, anational, ethnical, racial or religious group, as such.

59. As to the first ingredient, the actus reus or material element of genocide, the Trial

Chamber found that the evidence was sufficient to sustain a conviction. In paragraph 65 of its

Judgement, it said:

Although the Trial Chamber is not in a position to establish the precise number of victimsascribable to Goran Jelisi} for the period in the indictment, it notes that, in this instance, thematerial element of the crime of genocide has been satisfied. Consequently, the Trial Chambermust evaluate whether the intent of the accused was such that his acts must be characterised asgenocide.

60. As to the second ingredient or the mens rea of the offence, the Trial Chamber acknowledged

that the respondent performed the actus reus, in this case the murder of Muslims, with a

discriminatory intent. In paragraphs 73-77 of its Judgement it pointed out that:

21Case No.: IT-95-10-A 5 July 2001

an individual knowingly acting against the backdrop of the widespread and systematic violencebeing committed against only one specific group could not reasonably deny that he chose hisvictims discriminatorily [...]. A great majority of the persons detained in the collection centres andat Luka camp were Muslim []. The words and deeds of the accused demonstrate that he was notonly perfectly aware of the discriminatory nature of the operation but also that he fully supportedit []. [A] large majority of the persons whom Goran Jelisi} admitted having beaten andexecuted were Muslim. Additionally, many of the elements showed how Goran Jelisi} madescornful and discriminatory remarks about the Muslim population []. The Trial Chamberconcludes that in this case the discriminatory intent has been proved.90

61. The Trial Chamber, however, then went on to find that, despite that discriminatory intent

and the commission of acts within the definition of the actus reus of genocide, the respondent did

not have the requisite intent to destroy in whole or in part the Muslim group from Br~ko. First, it

said that there was not sufficient evidence to show that he was acting pursuant to a plan created by

superior authorities to accomplish that end, and, second, that even if he could be regarded as

capable of committing genocide as a single perpetrator which the Chamber thought theoretically

possible the evidence did not support the conclusion that he did so beyond a reasonable doubt.

62. The Trial Chamber admitted in paragraph 102 of its judgement that:

Goran Jelisi} presented himself as the "Serbian Adolf" and claimed to have gone to Br~ko to killMuslims [] [and] allegedly said to the detainees at Luka camp that he held their lives in hishands and that only between 5 to 10 % of them would leave there [] [and] told the Muslimdetainees in Luka camp that 70% of them were to be killed, 30% beaten and that barely 4% of the30% might not be badly beaten [] [and] remarked to one witness that he hated the Muslims andwanted to kill them all, whilst the surviving Muslims could be slaves for cleaning the toilets butnever have a professional job [] [and] reportedly added that he wanted "to cleanse" the Muslimsand would enjoy doing so, that the "balijas" had proliferated too much and that he had to rid theworld of them [] [and] said that he hated Muslim women, that he found them highly dirty andthat he wanted to sterilise them all in order to prevent an increase in the number of Muslims butthat before exterminating them he would begin with the men in order [to] prevent anyproliferation.

63. It also acknowledged in paragraph 103 that:

during the initial part of May, Goran Jelisi} regularly executed detainees at Luka camp. Accordingto one witness, Goran Jelisi} declared that he had to execute twenty to thirty persons before beingable to drink his coffee each morning. The testimony heard by the Trial Chamber revealed thatGoran Jelisi} frequently informed the detainees of the number of Muslims that he had killed. Thus,on 8 May 1992 he reputedly said to one witness that it was his sixty-eighth victim, on 11 May thathe had killed one hundred and fifty persons and finally on 15 May to another witness following anexecution that it was his "eighty-third case".

64. Nonetheless, in succeeding paragraphs 104-108, the Trial Chamber cited other evidence it

found convincing to show that [a]ll things considered, the Prosecutor has not established beyond

all reasonable doubt that genocide was committed in Br~ko during the period covered by the

indictment [] the behaviour of the accused appears to indicate that, although he obviously singled

90 Judgement, paras 73-75 and 77, pp. 23-24 (footnotes excluded).

22Case No.: IT-95-10-A 5 July 2001

out Muslims, he killed arbitrarily rather than with the clear intention to destroy a group.91 This

other evidence consisted of testimony that the respondent had a disturbed personality,

borderline, antisocial and narcissistic characteristic, immaturity, and a concern to please

superiors. It stated:

Goran Jelisi} suddenly found himself in an apparent position of authority for which nothing hadprepared him [...] this authority made it even easier for an opportunistic and inconsistent behaviourto express itself.92

65. Additionally, the Trial Chamber found that the respondent performed the executions

randomly, citing an episode where the respondent forced a leading Muslim to play Russian

roulette in order to obtain a laissez passer to leave the camp; at other times the respondent let

prisoners go after beating them.93 On this basis, the Chamber concluded that the acts of Goran

Jelisi} are not the physical expression of an affirmed resolve to destroy in whole or in part a group

as such.94

66. The Appeals Chamber turns first to evidence on the record that was presented by the

prosecution during the appeal to demonstrate both that the respondent believed himself to be

following a plan sent down by superiors to eradicate the Muslims in Br~ko and that, regardless of

any such plan, he was himself a one-man genocide mission, intent upon personally wiping out the

protected group in whole or part. Some of this evidence was specifically cited by the Trial

Chamber itself and summarised in its Judgement: threats by the respondent to kill 70%, to beat

30%, and spare only 5-10% of the Muslim detainees, statements by the respondent that he wanted

to rid the world of the Muslims, announcements of his quota of daily killings, and his desire to

sterilise Muslims in order to prevent proliferation of the group.95

67. However, during the appeal the prosecution has also pointed to other material on the record

which in its view supplements this evidence considerably, including extended interviews with the

respondent himself which, though often contradictory, contained critical evidence as to his state of

mind in committing the murders. A lengthy Annex A96 compiled by the prosecution contains

citations from the evidence that the respondent operated from lists designating prominent Muslims

to be killed; he referred to a plan for eradicating them; he wanted to cleanse [] the extremist

Muslims and balijas like one cleans the head of lice.97 Witness I said of him: [h]e carried out

91 Ibid., para. 108, p. 33.92 Ibid., para. 105, p. 33.93 Ibid., para. 106, p. 33.94 Ibid., para. 107, p. 33.95 Ibid., para. 102, p. 32.96 Annex A, filed confidentially as an annex to the confidential version of the prosecutions brief.97 Trial transcript, 13 September 1999 (witness M), p. 1462.

23Case No.: IT-95-10-A 5 July 2001

orders but he also selected his victims through his own free will 98 and that [h]e could have not

shot dead someone even if he were told to do so, but he did quite a few things on his own.99 There

is additional evidence of the regular visits of a Bimeks refrigerated truck to the camp to pick up 10-

20 dead bodies a day; nightly killings in which the respondent commented after each one [a]nother

balija less;100 his repeated references to himself as the Adolf the second and comments like Ive

killed 80 Muslims so far, and Ill finish all of you too and as many Muslims as possible had to be

killed and that Br~ko should become a Serbian town.101

68. The Appeals Chamber considers that this evidence and much more of a similar genre in the

record could have provided the basis for a reasonable Chamber to find beyond a reasonable doubt

that the respondent had the intent to destroy the Muslim group in Br~ko. To reiterate, the proper

lens through which the Appeals Chamber must view such evidence is not whether it is convinced

that the respondent was guilty of genocide beyond reasonable doubt but whether, giving credence to

such evidence, no reasonable Trial Chamber could have found that he had such an intent. The

Appeals Chamber is not able to conclude that that was the case.

69. The Appeals Chamber also considers whether the Trial Chamber reasonably concluded that,

even on the basis of the evidence it cited and discussed, the respondent should be acquitted for lack

of the requisite intent by any reasonable trier of fact.

70. The Trial Chamber essentially relied on the following evidence for its reasonable doubt

conclusion: that the respondent had a disturbed personality; that he was immature, narcissistic,

desirous of pleasing superiors and that, when placed in a position of authority, those traits

manifested themselves in an obsession with power over the lives of those he commanded. This, the

Trial Chamber said, was not the same as an affirmed resolve to destroy a protected group, in this

case the Br~ko Muslims.102 It bears noting that the psychiatric underpinnings of this conclusion

come from expert reports prepared for the purpose of deciding whether the respondent was

competent to stand trial (he was found to be) and in particular not for evaluating his mental capacity

to commit the crimes with which he was charged. He did not plead a defence of insanity and

indeed the Trial Chamber itself found him capable of a discriminatory intent in a separate finding.

It is sufficient for our purposes here to point out that there is no per se inconsistency between a

diagnosis of the kind of immature, narcissistic, disturbed personality on which the Trial Chamber

98 Annex A, referring to Witness I in trial transcript, 7 September 1999, p. 1112.99 Ibid..100 Trial transcript, 1 December 1998, p. 81.101 Trial transcript, 9 September 1999, p. 1306, 14 September 1999, p. 1556 and exhibit 66 (transcript of interview withthe respondent on 4 June 1998), p. 49.102 Judgement, para. 107, p. 33.

24Case No.: IT-95-10-A 5 July 2001

relied and the ability to form an intent to destroy a particular protected group. Indeed, as the

prosecution points out, it is the borderline unbalanced personality who is more likely to be drawn to

extreme racial and ethnical hatred than the more balanced modulated individual without personality

defects. The Rules visualise, as a defence, a certain degree of mental incapacity and in any event,

no such imbalance was found in this case.103

71. The Trial Chamber also placed heavy reliance on the randomness of the respondents

killings. It cited examples of where he let some prisoners go, played Russian roulette for the life of

another, and picked his victims not just off lists allegedly given to him by others, but according to

his own whim. Entitled though it may have been to consider such evidence, the Trial Chamber, in

the view of the Appeals Chamber, was not entitled to conclude that these displays of randomness

negated the plethora of other evidence recounted above as to the respondents announced intent to

kill the majority of Muslims in Br~ko and his quotas and arrangements for so doing. A reasonable

trier of fact could have discounted the few incidents where he showed mercy as aberrations in an

otherwise relentless campaign against the protected group. Similarly, the fact that he took

pleasure from the killings does not detract in any way from his intent to perform such killings; as

has been mentioned above, the Tribunal has declared in the Tadi} appeal judgement the irrelevance

and inscrutability of motives in criminal law insofar as liability is concerned, where an intent

including a specific intent is clear.

72. Thus, even if the Trial Chambers conclusion that there was insufficient evidence to show an

intent to destroy the group on the respondents part is examined on the basis of the evidence

specifically referred to by the Trial Chamber itself, it does not pass the approved standard for

acquittal under Rule 98bis(B) and, consequently, this part of the prosecutions third ground of

appeal is sustained.

73. With regard to remedy, counsel for the respondent argues that the Appeals Chamber has a

discretion, and that, in all the circumstances of this case, there should be no retrial. The Appeals

Chamber agrees that the choice of remedy lies within its discretion. Article 25 of the Statute

(relating to appellate proceedings) is wide enough to confer such a faculty; this discretion is

recognised as well in the wording of Rule 117(C) of the Rules which provides that in appropriate

circumstances the Appeals Chamber may order that the accused be retried according to law.104

Similarly, national case law gives discretion to a court to rule that there should be no retrial.105 The

103 Rule 67 of the Rules. With regard to diminished mental responsibility, see the Appeals Chambers finding inDelali} appeal judgement, paras 580-590, pp. 200-204.104 Cf. Rigby v. Woodward [1957] 1 WLR 250, and Griffith v. Jenkins and another, (1991) 156 JP 29.105 For a solution of this kind, see inter alia, Cosier case, Barking case. See also United States v. Hooper, 432 F.2nd

604, 139 U.S.App.D.C.171 (1970), United States v. Lindsey, 47 F.3d 440, 310 U.S. App.D.C.300 (1995).

25Case No.: IT-95-10-A 5 July 2001

discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness

to the accused, the interests of justice, the nature of the offences, the circumstances of the case in

hand and considerations of public interest. These factors (and others) would be determined on a

case by case basis. The question arises as to how the Appeals Chamber should exercise its

discretion in this case.

74. For the purpose of determining that question, the Appeals Chamber considers the following

factors to be of relevance. The respondent pleaded guilty to certain criminal conduct that was set

out in the agreed factual basis. On the basis of that criminal conduct he was found guilty of 31

counts of violations of the laws or customs of war and crimes against humanity. The Trial Chamber

imposed a sentence of 40 years imprisonment. A potential retrial would deal with a count of

genocide, charging the respondent with genocide by killing.106 In respect of this count, the

prosecution has brought no further charges of killing. The genocide count is therefore based on the

killings to which he has already pleaded guilty.107 Accordingly, a retrial would be limited to the

question of whether he possessed the special intent to destroy in whole or in part, a national,

ethnical, racial or religious group, as such. The definition of specific intent has been clarified in the

context of the prosecution appeal above.

75. Also, it was through no fault of the accused that the Trial Chamber erred in law it was not

the case that arguments advanced by the defence led to the Trial Chambers decision to enter a

judgement of acquittal. Considerable time will have elapsed between the date that the offences

were committed in May 1992 and the date of any potential retrial. The ad hoc nature of the

International Tribunal which, unlike a national legal system, means resources are limited in terms of

man-power and the uncertain longevity of the Tribunal.

76. Furthermore, the respondent has been in the detention of the Tribunal since 22 January

1998. The Trial Chamber recommended that the respondent receive psychological and psychiatric

follow-up treatment.108 Such treatment is currently provided by the United Nations Detention

Unit. However, a prison would generally be in a better position to provide long-term consistent

treatment.

77. Rule 117(C) of the Rules provides that in appropriate circumstances the Appeals Chamber

may order that the accused be retried according to law. The Appeals Chamber recognizes the

106 Second amended indictment, para. 14, p. 3 stated: [] Goran JELISI] personally killed the victims described inparagraphs 16-25, 30 and 33 [the killings the cross-appellant pleaded guilty to]. By these actions, Goran JELISI]committed or aided and abetted: Count 1: GENOCIDE, a crime recognized by Article 4(2)(a) of the Tribunal Statute.107 Prosecutors pre-trial brief, 19 November 1998, para. 2.2, p. 4 stated: In perpetrating the acts outlined in theindictment, the accused committed genocide by killing members of the group, contrary to Article 4(2)(a) of the Statute.108 Judgement, para. 140, p. 43.

26Case No.: IT-95-10-A 5 July 2001

prosecutions right to request a retrial as a remedy on appeal. However, as has been stated above,

whether or not such a request is granted, lies within the discretion of the Appeals Chamber based on

the facts of the case before it. It is not obliged, having identified an error, to remit for retrial.

Considering the exceptional circumstances of the present case, the Appeal Chamber considers that

it is not in the interests of justice to grant the prosecutions request and accordingly declines to

reverse the acquittal entered by the Trial Chamber and remit the case for further proceedings. In

this regard, the Appeals Chamber does not consider that the facts of this case constitute appropriate

circumstances, as referred to in Rule 117(C) of the Rules.

27Case No.: IT-95-10-A 5 July 2001

III. CROSS-APPELLANTS APPEAL

A. Cross-appellants first ground of appeal: cumulative convictions

78. At the hearing on appeal the cross-appellant sought and obtained leave to amend his notice

of appeal so as to argue that certain convictions should be quashed on the basis of the Delalic

appeal judgement. In that judgement, the Appeals Chamber held that:

reasons of fairness to the accused and the consideration that only distinct crimes may justifymultiple convictions, lead to the conclusion that multiple criminal convictions entered underdifferent statutory provisions but based on the same conduct are permissible only if each statutoryprovision involved has a materially distinct element not contained in the other. An element ismaterially distinct from another if it requires proof of a fact not required by the other. 109

79. The Appeals Chamber went on to say:

Where this test is not met, the Chamber must decide in relation to which offence it will enter aconviction. This should be done on the basis of the principle that the conviction under the morespecific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one ofwhich contains an additional materially distinct element, then a conviction should be entered onlyunder that provision. 110

80. In his oral argument on 22 February 2001, counsel for the cross-appellant invited the

Appeals Chamber to formally quash the lesser of each pair of offences for which [the cross-

appellant] was sentenced; but counsel did not say which of each pair he regarded as the lesser

offence.111 His submission referred to the following situation.

81. There were three separate allegations of causing bodily harm and twelve separate allegations

of murder. Each of the three allegations of causing bodily harm was charged, first, as a violation of

the laws or customs of war (cruel treatment), contrary to Article 3 of the Statute, and, secondly, as a

crime against humanity (inhumane acts), contrary to Article 5 of the Statute. Each of the 12

allegations of murder was charged, first, as a violation of the laws or customs of war, contrary to

Article 3 of the Statute, and, secondly, as a crime against humanity, contrary to Article 5 of the

Statute.

82. The validity of cumulative convictions in relation to the same conduct, charged as a

violation of the laws or customs of war under Article 3 and as a crime against humanity under

Article 5 of the Statute, is based on the notion that each crime has a special ingredient not possessed

by the other. Following the reasoning of the Appeals Chamber in the Delali} appeal judgement,112

109 Delalic appeal judgement, para. 412, p. 138.110 Ibid., para. 413, p. 138.111 Appeal transcript, 22 February 2001, p. 33.112 Also applied in Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T & IT-96-23/1-T, Judgement, 22February 2001, para. 556, pp. 198-199.

28Case No.: IT-95-10-A 5 July 2001

the Appeals Chamber notes that, Article 3 requires a close link between the acts of the accused and

the armed conflict; this element is not required by Article 5. On the other hand, Article 5 requires

proof that the act occurred as part of a widespread or systematic attack against a civilian population;

that element is not required by Article 3. Thus each Article has an element requiring proof of a fact

not required by the other. As a result, cumulative convictions under both Articles 3 and 5 are

permissible. In such a situation, it is not possible to hold, as is submitted by the cross-appellant,

that either offence is a lesser included offence of the other.

83. The cross-appellants first ground of appeal concerning cumulative convictions accordingly

fails. The Appeals Chamber affirms the cumulative convictions based on the same conduct for

violations of the laws or customs of war charged under Article 3 and for crimes against humanity

charged under Article 5 of the Statute.

29Case No.: IT-95-10-A 5 July 2001

B. Cross-appellants second ground of appeal: the Trial Chamber erred in fact and in

the exercise of its discretion when imposing sentence

1. Admissibility of evidence at trial on count of genocide

84. The cross-appellant argues that the sentence passed by the Trial Chamber for the counts in

respect of which he pleaded guilty erroneously took into account prosecution evidence given at his

trial for genocide; that the decision of the Trial Chamber to acquit at the close of the case for the

prosecution meant that any evidence that the defence might have wished to adduce in rebuttal or

qualification of the prosecution evidence was not available to the Trial Chamber; and that, although

the prosecution witnesses were cross-examined, this was only from the point of view of conviction,

and not from the point of view of sentence. Consequently, in the submission of the cross-appellant,

the evidence taken on the trial for genocide should have been excluded for sentencing purposes.

85. Apart from its other arguments, the prosecution submits that it is not necessary to consider

these complaints because there was no link, or no relevant link, between the testimony given in

respect of the trial on the count of genocide and the sentence passed in respect of the counts on

which the cross-appellant pleaded guilty.

86. The cross-appellant pleaded guilty to thirty-one counts including, inter alia, acts of killings.

During the trial on the count of genocide, evidence was presented with regard to some of these acts,

which constituted the underlying acts for the alleged genocide. Evidence was presented, inter alia,

demonstrating the manner in which these killings had been committed. The Trial Chamber took the

following aggravating factors into account; the repugnant, bestial and sadistic nature of Goran

Jelisi}s behaviour,113 [h]is cool-blooded commission of murders,114 and his enthusiastic

participation in the crimes.115

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to

take into account evidence presented during the genocide trial, insofar as that evidence was

presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty. The

important point is that in considering evidence for the purpose of sentencing, the Trial Chamber

should afford the cross-appella